SACRAMENTO –Attorney General Edmund G. Brown Jr. today urged the Obama Administration to overturn the Bush EPA’s “illegal and shortsighted” denial of California’s request to carry out its state law requiring a 30% reduction in tailpipe greenhouse gas emissions.

EPA must grant California’s waiver request before the state can enforce its tough emissions standards. The Bush administration had been ducking California’s request since 2005. In 2007, the Bush Administration denied California’s request.

On February 6, 2009, EPA Administrator Lisa Jackson announced the Agency’s decision to review its denial of California’s request to implement its greenhouse gas emission law.

There are 32 million registered vehicles in California, twice the number of any other state. Cars generate 20% of all human-made carbon dioxide emissions in the United States, and at least 30% of such emissions in California. If California’s landmark global warming law—and the corresponding 30% improvement in emissions standards—were adopted nationally, the United States could cut annual oil imports by $100 billion dollars at $50 per barrel.

These comments are submitted in support of California’s waiver application. I strongly support EPA’s decision to reconsider its decision denying the waiver. The denial was in error, on both legal and factual grounds. EPA’s willingness to review that decision represents an important step after years of Bush Administration resistance to environmental protection. I intend to submit more detailed comments addressing both the factual errors and legal defects in EPA’s waiver denial decision. Today, however, I make two points: First, EPA’s decision to reconsider its waiver denial is proper. Second, given the urgency of dealing with global warming, EPA should grant California’s waiver as soon as possible.

EPA’s Decision to Reconsider the Waiver Denial is Appropriate and Proper.

EPA’s decision to reconsider its denial of California’s waiver request is both sound and legally correct. See, e.g., Sierra Club v. Vanantwerp, 560 F. Supp.2d 21 (D. D.C. 2008). There are substantial defects in EPA’s waiver denial decision that require correction, and it makes sense for EPA, the expert administrative agency, to cure its own mistakes.

In this denial, EPA departed from long standing past practice and considered whether California’s GHG emissions standard was needed to meet compelling and extraordinary conditions related to a specific pollutant – GHG emissions. Until this decision, EPA had looked at California’s emissions program in its totality, as the Clean Air Act requires. 42 U.S.C. § 7543. California’s separate emissions program has been approved because of the state’s climate, geography, extraordinarily severe air quality problems, and the large number and concentration of motor vehicles contributing to these problems. The Administrator also determined that climate change impacts in California were not sufficiently different from the nation as a whole and, therefore, did not support adoption of state standards regulating motor vehicle greenhouse gas emissions. This conclusion ignores that California continues to have compelling and extraordinary conditions justifying its own mobile source program, and that the impacts from climate change will be particularly severe in the state, given California’s extensive coastline, significant dependence on snow pack for water supply, vulnerability to floods and wildfires, severe ozone problem, and other impacts. These fundamental errors, among others, undermine the legitimacy of the waiver denial because they misconstrue the Clean Air Act and depart from decades of prior, sound agency practice.

In the landmark case Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the Bush Administration fought to avoid its responsibility to deal with the threat of global warming. It took the case all the way to the U.S. Supreme Court, which rejected its arguments and ruled that global warming emissions are pollutants under the Clean Air Act. Even after the Court’s decision, EPA delayed taking any action on greenhouse gases for close to two years. EPA’s decision denying California’s waiver was another attempt to avoid the agency’s obligation to administer the Clean Air Act, as Congress wrote it. Now that EPA is reconsidering that decision, California looks forward to working with EPA so that these important standards can, finally, become effective.

EPA Should Grant the Waiver as Soon as Possible.

Global warming is the arguably most urgent environmental issue of our time. Our way of life and perhaps even our survival depend on our response to this problem. The regulations before you are a first, bold step toward dealing with global warming. They are ready to be enforced. Without Congress’ foresight in allowing California its important leadership role in setting automobile emissions standards, we would not have these ready-to-implement regulations today. All we need is a waiver from EPA. That waiver is long overdue. We have been waiting since 2005 for it.

Fourteen states plus the District of Columbia have adopted California’s greenhouse gas emissions regulations, with another four states in the process. The 14 states represent at least 37 percent of the nation’s vehicles and the four states in the process will raise the level to approximately 47 percent. There are several more states debating whether to adopt the program and, if they move forward, will represent over half the nation. We are optimistic that EPA will, upon reconsideration, grant California’s waiver request, thereby allowing California’s standards to become effective.

EPA therefore should waste no time in granting California’s waiver application as soon as possible. I am confident that upon reconsideration, the agency will determine that the request is consistent with the Clean Air Act and must be granted.
Sincerely,